TRIBHANGA BIHARI BHANJA Vs. PRAHLAD CHANDRA TUNG

JUDGEMENT

(1.) A suit for partition being Title Suit No.41 of 1963 brings about this Second Appeal. In the plaint the case which has been made out is in brief as follows: The properties described in Schedule- Ka to the plaint originally belonged to two brothers Bipin Saha and Babulal Saha in equal shares. Bipin had five sons namely Suchand, Jyoti, Gadai, Sadai and Goti. Out of the five, first two pre-deceased him without keeping any issue. 'Kha' Schedule property is a part and parcel of the properties mentioned in the Schedule-'Ka' to the plaint. On 02/11/1936 Bipin made a gift of the 'Kha' Schedule properties to Chhoto Indubala. Wife of Sadai and Kamalabala, wife of Goti through a registered deed of gift. The donees obtained possession of the properties from the donor. Later on they sold some of the properties to Baro Indubala. wife of Gadai. Thereafter, Chhoto Indubala and Kamalabala sold some of those properties to the plaintiff No.l and 2 and put them in possession. The remaining half share of the 'Ka' Schedule properties belonged to Babulal Saha was inherited by his only son and heir Biswanath Saha. On 21/02/1938 Biswanath settled his share in respect of 'Ga' Schedule property with defendant Nos. 1 to 3 by means of a registered patta. It transpires that the said patta was also jointly executed by Gadai, Sadai and Goti, who had absolutely no interest in the property on account of prior gift made by Bipin Saha in favour of Chhoto Indubala and Kamalabala. The shares of the defendant Nos. 1 to 3 in 'Ga' Scheduled property cannot execeed eight annas and the remaining eight annals belonged 'to the plaintiffs. In the revisional settlement record however, the entire 'Ga' schedule property has been recorded in the name of the defendants. The plaintiffs filed an objection under section 44(2a) of the West Bengal Estates Acquisition Act for rectification of the Record of Rights but they became unsuccessful. The 1st defendant sold his share in the 'Ga' Schedule property to the 4th defendant while the 3rd defendant has sold his share to the 5th defendant by registered sale deeds. All these transfers, according to the plaintiffs are sham and collusive. The Revisional Settlement Records regarding the 'Ga' Schedule property in the name of the defendants are wrong and should be rectified. Joint possession with the defendants became inconvenient and so the plaintiffs requested them to get the property amicably partitioned but their request was not complied with as a result of which they have been compelled to bring the present action.

(2.) The defendant No. 2 and defendant Nos. 4 and 5 contested the suit by filing two sets of written statements which are on the same lines. Their defence are that the deed of gift executed by Bipin Saha in favour of Chhoto Indubala and Kamalabala was a sham and collusive document. Bipin created this benami document for special reasons. The document however, was never acted upon and Bipin Saha remained in possession of the 'Kha' Scheduled properties till his death after which it was inherited by his three surviving sons Sadai, Gadai and Jyoti. Similarly, the sale deeds executed by the donee in favour of Baro Indubala as well as in favour of plaintiff Nos. 1 and 2 are sham, collusive and without consideration. Biswanath, along with Gadai and Sadai and Goti settled the suit lands with defendant Nos. 1 and 3 by a registered patta dated 21/02/1938. Although the patta stood in the name of defendant No. 1 alone, defendant Nos. 2 and 3 who are brothers of defendant No. 1 have each l/3rd share in the land. The share of defendant Nos. 1 and 3 have been sold to defendant Nos. 4 and 5 respectively. Defendant Nos. 2, 4 and 5 are therefore, 16 annas owners of the suit land in which the plaintiffs have no interest at all. It is also alleged that the suit is not maintainable as the plaintiffs have prayed for partial partition.

(3.) On the above pleadings, the following issues were framed by the learned Trial Judge.